Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—6th Cir.: NLRB’s petition to enforce order against federal contractor for unlawfully firing union employee granted, (Sep 8, 2026)

By Nicholas Kaster, J.D.

The Sixth Circuit found that there was substantial evidence—both direct and circumstantial—that supported the Board’s conclusion that the employee’s protected conduct was a substantial or motivating factor in his termination.

The Sixth Circuit granted the NLRB’s petition to enforce an order against a federal contractor for unlawfully firing a union employee. The appeals court found that the employer violated Sections 8(a)(3) and (1) of the NLRA by terminating the employee in retaliation for his complaint that the company had violated the terms of a collective bargaining agreement. Under the Interboro doctrine, the court explained, an employee’s “honest and reasonable” invocation of a right under the CBA constitutes protected “concerted activity,” even if the employee is mistaken about the right invoked. The employer also objected to the Board’s remedial order that included reinstatement and back pay for the employee. However, the Sixth Circuit declined to address these arguments at this juncture, holding that they should be made to the Board in compliance proceedings (NLRB v. VNS Federal Services, LLC, No. 25-1233 (6th Cir. Sept. 3, 2026).

The employee worked as a heavy equipment operator at a plant in Ohio. The employer was a subcontractor on a project undertaken by the Department of Energy to decontaminate and decommission the site. The employee and his fellow heavy equipment operators at the plant were represented by the International Union of Operating Engineers, Local 18, which had bargained with the employer and the other contractors to set the terms and conditions of their employment. The governing CBA is the General Presidents’ Project Maintenance Agreement (GPPMA). Under the GPPMA, the employer was required to hire operators from the union’s hiring hall, but it enjoyed broad latitude to lay operators off, so long as it complied with nondiscrimination and fair-employment laws.

Laid off. The case arose from a complaint the employee made in February 2020. During a team meeting, the superintendent announced that work would be suspended for the week due to inclement weather. At the employees’ request, he agreed to lay them off for that week so they could collect unemployment except for a coworker, who was guaranteed 40 hours of work per week. The employee objected to this side deal and complained to the superintendent that “there’s not any guaranteed 40-hour men that work under this contract.” When the employee later met with his union representative to express his concerns about the coworker’s 40-hour guarantee, the union rep promised to investigate the violation. Subsequently, the employee was laid off, the employer citing a “light workload.”

The employee filed a complaint, alleging that the employer retaliated against him for challenging the coworker’s side agreement. During the investigation, the employer’s project manager stated that the company considered layoffs during the weather stoppage because of the inclement weather and low production. The manager reported that the employer and contractor “had some issues” with the employee in the past because of his “negativity and constant complaining.” He then explained that the superintendent “had problems with” the employee just before the layoff because he was “very vocal” in complaining about the coworker’s hours. For the first two weeks after the layoff, the employer did not hire any new operators, but two other employees together worked 16 hours of overtime. Until the plant’s closure, the employer hired operators for other projects.

ALJ and Board decisions. On June 22, 2020, the employee filed unfair labor practice charges against the employer. After a hearing, an administrative law judge found that the employer violated Sections 8(a)(3) and (1) of the NLRA by discharging the employee for engaging in protected concerted activity. The Board’s decision and order affirmed the ALJ’s ruling, findings, and conclusions. The Board declined to address the employer’s arguments against imposing reinstatement and backpay, holding that it would follow its traditional practice of adjudicating the dispute over remedies at the subsequent compliance stage. The Board petitioned for enforcement of the order in full.

Discriminatory discharge. The employer challenged the Board’s findings that the General Counsel established a prima facie case of discriminatory discharge and that the employer’s proffered justification was pretextual. The employer argued that the Board’s finding of a prima facie case of unlawful discharge was not supported by substantial evidence. The Board found that the employee engaged in protected concerted activity when he (1) complained that the coworker’s 40-hour guarantee violated the GPPMA and (2) sought assistance from his union representative to speak to management on his behalf.

The employer contested whether the employee engaged in protected concerted activity when he complained about the coworker’s 40-hour guarantee. Not all complaints count as protected concerted activity; instead, the employer argued, some are just individual gripes.

Interboro doctrine. The Sixth Circuit evaluated whether an individual complaint under the collective bargaining agreement amounted to concerted activity under the Interboro doctrine articulated by the U.S. Supreme Court. Under the Interboro doctrine, an employee’s “honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated.”

Here, the employee complained about the side agreement with the coworker for a 40-hour week during the February 10 meeting. Everyone agreed that the GPPMA did not prevent this side agreement, even if the union’s bylaws did. The Board, however, determined that, because the employee had an honest and reasonable belief that the GPPMA prohibited the coworker’s deal, his complaint constituted concerted activity under the Interboro doctrine.

The employer, however, contended that in his complaint about the coworker’s 40-hour guarantee, the employee did not invoke a collectively bargained right, and if he did, the invocation was not honest and reasonable. Reviewing the record, the Sixth Circuit concluded that substantial evidence supported the Board’s factual finding that the employee honestly and reasonably invoked a collectively bargained right. A “reasonable mind” could interpret the employee’s repeated mention of the contract as a reference to the GPPMA, the applicable collective bargaining agreement. The Board’s determination that the employee invoked his rights under the collective bargaining agreement was therefore supported by substantial evidence in the record and was not negated by his later references to the bylaws.

The Board credited the employee’s testimony that he believed the agreement with the coworker violated the contract because the union rep had previously told him that the contract did not guarantee 40 hours to any employee and did not permit such guarantees. There was also no evidence in the record that anyone contradicted the employee’s interpretation of the contract when he invoked it at the February meeting. And when he later raised his concern about the side agreement to the union rep, the rep conceded that he appeared to be right about the violation and immediately went to investigate his claim, which he was unlikely to have done if it was an unreasonable and meritless complaint.

Accordingly, the Sixth Circuit concluded that under the Interboro doctrine the Board’s determination that the employee engaged in concerted activity by complaining about the coworker’s side deal was supported by substantial evidence.

Substantial or motivating factor. Moreover, the Sixth Circuit found that there was substantial evidence—both direct and circumstantial—that supported the Board’s conclusion that the employee’s protected conduct was a substantial or motivating factor in the decision to terminate him. The appellate court cited various pieces of evidence that tied the termination decision to the employee’s choice to invoke a collective bargaining right and enlist his union representative to investigate the alleged violation.

The court noted that the employee was terminated only two days after his complaint to the union rep and on the same day the superintendent met with management to discuss his complaint. Moreover, in discharging the employee immediately after the meeting with management, the employer abruptly reversed its stated plan to recall all employees, a plan it announced on February 10 to the crew and reiterated in an email to the office manager.

That the reversal happened so quickly after the employee engaged in protected activity was strong evidence of causation, the Sixth Circuit stated. The court also noted that the project manager responded to an inquiry about the employee’s complaint by saying that the superintendent “had problems” with the employee because of his “very vocal” complaint about the coworker working 40 hours, and that this made the decision of whom he should layoff “much easier.” This was direct proof that the employer factored the employee’s complaint about the side agreement—which was protected concerted activity—into its layoff decision, the Sixth Circuit said.

Substantial evidence also supported the Board’s finding of pretext, the appeals court found. Upon review of the record, the Board concluded that the employer’s contention it decided to terminate the employee due to insufficient work was “beyond the bounds of believability.”

Because substantial evidence supported the Board’s finding that the proffered justification for the layoff was pretextual, the Sixth Circuit affirmed the Board’s determination that the employer violated Sections 8(a)(3) and (1) of the NLRA by discharging the employee in retaliation for concerted activity.

Remedial order. Finally, the employer challenged the Board’s remedial order. The Board ordered the employer to cease and desist from NLRA violations, offer the employee reinstatement, make him whole for loss of earnings and benefits, expunge any reference to the layoff from his personnel file, and post remedial notices.

The NLRA explicitly authorizes reinstatement and backpay as remedies for unfair labor practices and the Sixth Circuit stated that it would not hold that the Board abused its discretion in awarding those remedies “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.”

The employer argued that even if the Sixth Circuit upheld the Board’s finding that it violated the NLRA, the court should not enforce the Board’s remedial order because the employer had already complied with parts of it and the other parts—reinstatement and backpay—were overbroad.

The Sixth Circuit declined the employer’s request to resolve its challenges to the Board’s remedial order. The court deferred questions about the tailoring of the remedies to the compliance stage and any petitions for review from those proceedings. However, although the Sixth Circuit declined to alter the Board’s remedial order at this stage, it recognized that there has been a lengthy delay in opening compliance proceedings in this case. The Board represented at oral argument that the delay was in part attributable to the pending enforcement proceedings. “Now that the enforcement phase has been completed, we expect that compliance proceedings will begin expeditiously,” the Sixth Circuit stated.

Accordingly, the Sixth Circuit granted the Board’s petition for enforcement of its order in full.

The case is No. 25-1233.

Judge: Bloomekatz, R.

Attorneys: Ruth E. Burdick for the NLRB. Timothy R. Fadel (Fadel & Beyer) for International Union of Operating Engineers, Local 18. Catherine Frost Burgett (FBT Gibbons) for VNS Federal Services, LLC.

Companies: International Union of Operating Engineers, Local 18; VNS Federal Services, LLC

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